The Privacy Rights Clearinghouse (PRC) is a nonprofit, consumer education and advocacy organization based in San Diego. The PRC interacts directly with consumers via a phone hotline and inquiries received by electronic mail. Indeed, one of the most frequent complaints received by the PRC is from consumers who object to the invasion of privacy from unwanted telephone solicitations. This legislation provides welcome relief for California citizens.

The PRC is pleased to offer the following comments regarding regulations to implement the "Do Not Call Registry" required by Senate Bill 771. In doing so, we address only those points for discussion that we believe would have a bearing on consumers' ability to utilize the list and the privacy implications involved. Comments concerning fees, geographical listings, and proof of exempt status would best be left to discussion between the Attorney General's Office and purchasers of the list.

Under Business & Professions Code §17590(b), subscribers may choose to exclude a company from their "do-not-call" list. In what form should the information be given? Should the exclusion automatically be continued upon renewal of registration unless the subscriber specifically deletes the exclusion?

Use of the "do-not-call" registry should be as easy as possible for consumers. Also, the work required by the Attorney General's staff should be as streamlined as possible in order to carry out the mandates of the law.

For a company to take a consumer's time to sell a product or service is a privilege rather than a right. If a consumer agrees to allow a specific telephone solicitor to call him or her, the burden should be on the solicitor to obtain and prove the consumer's consent. The Attorney General's staff should not have to maintain a list of exclusions and the consumer should not have to supplement the registry with his or her chosen exclusions.

Rather, the burden should fall on the company that wants to call the consumer. By obtaining a verifiable consent from the consumer, on a standardized form, good for a set period of time, the company would have proof of the authority to call the consumer. Such a consent form should be kept as part of a company's record keeping requirements.

The Attorney General's regulations should specify that the form containing the consumer's "consent to contact" be on a separate document, signed and dated by the consumer. Regulations should not allow a general "consent to contact" that is included in other documents such as a consumer survey. The question of whether the company violated the law would then only become an issue upon complaint by the consumer. Thus, the consumer would be relieved of responsibility of reporting exclusions to the Attorney General.

The Attorney General's staff, in turn, would be relieved of the responsibility of including information about the consumer who agreed to an exclusion on the "do-not-call" register. If the burden is placed on the company seeking to make a telemarketing sale, the Attorney General's staff would not have to take the additional step of determining the consumer's preference at the time of initial registration or renewal of the registration.

Both the consumer and the AG should be able to request a copy of the consent form from the company upon request.

To answer the second question, yes the exclusion should be given upon renewal of the Do Not Call registration by the consumer.

Article 1, Section 1 of the California Constitution establishes a right of privacy. What steps should be taken to ensure that, pursuant to Business & Professions Code §17590(b), the act of becoming a subscriber does not undermine the subscriber's right of privacy guaranteed by the California Constitution?

To uphold Californians' Constitutional right to privacy, the information necessary to be included on the "do-not-call" registry should be limited to the consumer's telephone number and ZIP code. In addition to maintaining privacy, such a procedure would eliminate the creation of yet another database containing extensive personal information.

The "do-not-call" list will include wireless phone subscribers. In regard to subscribers listing wireless phones, what ZIP Code referred to in Business & Professions Code §17591(a) should be utilized?

No Comment.

Business & Professions Code §171591 (c) provides for a sliding scare fee for those who wish to purchase "do-not-call" lists, the maximum charge to companies with more than 1,000 employees or independent contractors, no fee to companies with fewer than five full-time employees or independent contractors. What methodology should be used for determining the sliding scare fee for purchasers of the list? If the sliding scale fee relates to the number of an entity's employees or independent contractors, what proof should a entity seeking to pay less than the maximum provided regarding the number of employees or independent contractors, what criteria should be used and what proof should be required for those seeking to pay less than the maximum fee? What proof should be required for those seeking to obtain the list free of any charge? Should consideration be given to part-time or seasonal employment practices?

No comment.

Business & Professions Code §17590 (c) requires the Attorney General to offer telephone solicitors both a statewide list and a list of areas within the state. How many separate areas of the state should be listed? Should fees for purchase of separate areas be less than fees for purchase of the entire state? If so, how should such fees be determined? Also, should the state make lists available in specialized formats? And if so, at what additional fee? Please describe the formats.

No comment.

Business & Professions Code §17592(e) lists various types of businesses or types of telephone calls which are exempt from coverage under the "do-not-call" legislation. What records should an entity which claims to be exempt from coverage of the statute be required to keep? How long must such records be kept?

No comment.

The statute required that the "do-not-call" list be updated at least quarterly. Should an entity purchasing the "do-not-call" list pay for each quarterly edition or should there be only one annual fee?

No comment.

What methods should be utilized to prevent purchasers of the "do-not-call" list from reselling or redistributing the list or from using the list to offer call blacking services to other telephone solicitors?

The AG's office should "seed" this list with names and phone numbers of individuals who are not otherwise listed. These individuals could be employees of the AG's office. If any of these individuals receive phone calls from telemarketers, it would be an indication that the list has been resold to other telemarketers who are then using it for phone solicitations.

Subscribers are placed on the list for a three year period. Should notice be given to subscribers that a subscription need be renewed in order for the subscriber to remain on the list? If so, when should the notice be given and what methodology should be used?

The PRC does not believe the Attorney General's staff should assume the burden of attempting to contact every consumer who has enrolled in the do not call list at the end of the three-year period. Instead, we suggest that a series of public service announcements be made to advise consumers of the need to subscribe every three years. The announcements should start in 2006 and run continuously thereafter. Reminders could also be given via permanent postings on state government web sites such as the Attorney General's site, the Department of Consumer Affairs Office of Privacy Protection, and the site for the Public Utilities Commission.

Business & Professions Code §17590(d) requires that a consumer subscriber call from the telephone number that is also the number to be included on the list. Should consumers be able to subscribe additional numbers from that phone, or should they have to make a separate subscription call from each phone they wish to include on the list?

In the interest of providing ease and convenience for the consumer who uses the registry, one telephone call should be sufficient to register more than one telephone number. The ability to enroll more than one telephone number would be particulary useful for one who, for example, is guardian of an elderly parent who lives some distance from the guardian. However, in order to discourage pranks or other inappropriate use of the system, the number of selections could be limited to two or three telephone numbers. In this way, consumers would be able to register home and cell phone numbers with a single telephone call as well as the number for an elderly parent, but one intent on abusing the system would not be able to enter multiple numbers.

Should subscribers and agent who are not employees of a subscribing telephone solicitation organization be required to subscribe to and purchase the list? For example, should a large insurance company be able to subscribe once annually for the list and then redistribute the list to all of its agents in California?

No comment.

How do you interpret the meaning of Business & Professions Code §17592(b)?

This section states: A person or entity does not necessarily qualify as a telephone solicitor if the products or services of the person or entity are sold or marketed by an independent contractor whose business practices are not controlled by the person or entity.

This section could easily be construed as a "loophole" that would allow telephone solicitors to circumvent the requirements of the law by employing an "independent contractor" to market its products and services over the telephone. Given the word "necessarily," we believe the Attorney General has been given wide latitude to determine, through regulation, the circumstances under which an "independent contractor" would not qualify as a telephone solicitor and thus not be subject to the "provisions of the law.

Should the regulations clarify the definition of "an existing business relationship" by defining a length of time during which a prior contact would constitution such a relationship?

Yes. The Privacy Rights Clearinghouse has received complaints from individuals who have been contacted, for example, by a long distance company they no longer use, or from a credit card company whose credit account has been closed by the consumer. Such calls are often an attempt to woo the former customer back to the company. Once an individual has severed ties with a company, that company should be given a reasonable amount of time to update its records, say, 30 days. After that period, the individual should be considered no longer having an existing business relationship with the company. The company should not call if the individual's name and phone number are on the AG's Do Not Call List.

The Privacy Rights Clearinghouse (PRC) appreciates the opportunity to comment on the proposed regulations to implement the provisions of Chapter 1 of Part 3 of Division 7 of the Business and Professions Code which mandates the establishment of a statewide Do-Not-Call list. The PRC has long been on record in support of such a list. This is a major step toward assuring the public freedom from unwanted intrusions from telephone solicitors.

We are joined on these Comments by four other California consumer advocacy organizations:

Consumer Action

Consumers Union

Congress of California Seniors

Identity Theft Resource Center

We commend the Attorney General's (AG) office for efforts in the proposed rulemaking to institute an uncomplicated procedure that will allow for maximum public participation. As the AG is no doubt aware, unwanted and intrusive telephone solicitations are among the most frequently voiced consumer complaints. We are pleased to note that the proposed regulations recognize this problem and have incorporated many of the suggestions offered by the PRC in earlier comments submitted on March 11, 2002.

For purposes of clarification and to assure maximum privacy for the many California citizens who will participate in the Do-Not-Call list, we offer the following comments and suggestions as to specific sections of the proposed regulations.

§4006 - Established business relationship.

This section establishes the criteria that must be met by a telephone solicitor to contact a subscriber where an "established business relationship" exists. Subsections (b) of §4006 allows contact of a subscriber who has placed an order for other than seasonal goods and services within the last 30 calendar days. Subsection (c) of §4006 allows contact when an order has been placed with the solicitor for seasonal goods or services within the last year.

In order to clarify situations where both (b) and (c) would meet the criteria for an established business relationship, we suggest these sections be supplemented by examples of when each subsection would apply.

In addition, we suggest that the regulations incorporate the "trademark" exception of § 4154 in the definition of established business relationship. By doing so, the solicitor's right to call within 30 days from an order under subsection (b) or within one year of a seasonal order under subsection (c) would not apply if the subscriber has asked to be placed on the "Do-Not-Call" list maintained by the solicitor.

Subsections (b) and (c) as currently written would seem to prohibit the subscriber's ability to stop unwanted telephone solicitations from any company from which the subscriber has placed an order within the last 30 days (Subsection (b)) or within the last year in the case of a seasonal product. Consumers now have the right, under Section 64.1200 of Title 47 of the Code of Federal Regulations and Part 310 of Title 16 of the Code of Federal Regulations, to ask to be put on a Do-Not-Call list. It is not clear that consumers would retain this right under (b) and (c) of §4006 of the proposed regulations.

§4053 Collection, use and disclosure of information required to list a telephone number

The PRC suggested in previous comments that the statewide Do-Not-Call list include only a telephone number and Zip code. We are pleased that the proposed regulations specify that only these two bits of information be included on the list.

We recognize that additional information such as name and mailing address or e-mail address is information that must be collected by the AG's office in order to administer the list. We also recognize that the AG's office must collect certain personal financial information, such as credit card numbers and checking account numbers, in order to process payment for the enrollment on the Do-Not-Call list. However, we urge the AG's office to establish internal procedures to provide the utmost security for the personal data collected.

In addition, it may be necessary to maintain names, mailing addresses and e-mail addresses in order to provide enrollees with notice of expiring registration and to assure that solicitors that are excepted by choice of the subscriber are correctly coordinated with the name and telephone number of the subscriber. However, we urge the AG's office to maintain personal financial information such as credit card numbers and bank account numbers obtained from checks only for a period of time necessary to process the payment for enrollment.

We see no apparent benefit to subscribers or to the orderly administration of the list for the AG's office to maintain personal financial information that is not going to be used again, if at all, before the end of the three year enrollment. To maintain such personal financial information for no apparent reason would only present a risk to subscribers from hackers or other unauthorized access.

§ 4055 - When listings begin and end.

To provide maximum continued benefit to subscribers, we recommend that enrollees be given a grace period in which to re-enroll before numbers are removed from the Do Not Call List. Otherwise, a subscriber whose three-year enrollment date has lapsed could be removed from the list if the date of the end of the enrollment period occurs right before a new quarterly list is published. Subscribers would then be subjected to three months of unwanted telephone solicitations before their number could be listed again.

Any subscriber who has not re-enrolled within three months after the expiration of the three-year period could be assumed to have no intention to re-enroll.

§4103 - Discounts

The waiver of fees as proposed applies to telephone solicitors with five full-time employees. We suggest that this section specify that the wavier would apply for five full-time or part-time employees. Inclusion of part-time employees for the fee wavier would be consisted with §4155(b) applicable to exemptions for local small businesses.

By including only full-time employees in the fee waiver, a solicitor might be encouraged to employ a large number of sales staff at slightly less than full-time in order to avoid bearing a fair share of the cost of the privilege to solicit subscribers. Such a practice, while legal under the regulations as proposed, would thwart the legislative intent of the Do-Not-Call list.

§ 4141 - Exemption: Express request.

Subsection (d) of §4141 allows a telephone solicitor to make a telephone solicitation call on the basis of a referral provided that the telephone solicitor identifies the name of the person or entity who made the referral. This section provides that the permission may be given by verbal as well as written consent.

We suggest that this section specify that only written consent is sufficient to solicit by referral since the subscriber would have no way of proving that verbal consent was not given. As with other provisions for exception to the Do-Not-Call request, written consent to solicit should be required. And, the burden to prove that the subscriber consented to be contacted in response to a referral should rest with the solicitor.

Again, the Privacy Rights Clearinghouse and the four organizations listed below are pleased to offer these Comments. We believe the minor additional changes we have suggested will promote the legislative intent of providing the public with control over unwanted and unsolicited telephone solicitations.